Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

June 9, 2006

'GOOD' FLAG-BURNERS VS 'BAD'....When the right criticizes hate-crime proposals, the main argument seems to be opposition to punishing one's thoughts. As the argument goes, judge the conduct, not the motivation for the conduct.

With this in mind, I've been wondering what these same people might say about the flag-burning amendment that's supposed to come up for a vote in the Senate next week. Though I suspect proponents would deny it, the measure seems to be aimed, not at those who burn the American flag, but at those who burn the American flag for the wrong reasons.

About a year ago, I was doing some research on flag "desecration" and found dozens of examples across the country of veterans' groups and Boy Scouts holding public flag-burning ceremonies. In Hazelton, Pa., Tom Kostick, commander of AMVETS Post 253, helped collect thousands of flags for a mass burning and set up a mailbox in front of the VFW building where veterans can donate flags for the ceremony. "It's the only proper way to it," Kostick said. "We like to let people know the proper way to dispose of them." Look at the men in this picture. They're all burning American flags.

Now, obviously, these aren't the kinds of incidents that Orrin Hatch and congressional Republicans are worried about. I suspect supporters of the amendment would argue that these public ceremonies are different because the people involved love the United States and were honoring the flag by burning it.

In other words, the argument is "good" people can burn the flag, but "bad" people should be prohibited from doing so, through a constitutional amendment if necessary. People who burn the flag out of reverence should be encouraged, but those who do so in protest should be prosecuted. It's not how you act; it's what you're thinking while you act.

I don't imagine Hatch or anyone else wants to punish patriotic Americans who burn the flag for all the right reasons, but I'm yet to figure out how the law is supposed to draw the distinction between the respectful and the insolent.

Steve Benen 2:55 PM Permalink | Trackbacks | Comments (121)

Bookmark and Share
 
Comments

"I'm yet to figure out how the law is supposed to draw the distinction between the respectful and the insolent."

Party registration.

Obviously.

Posted by: gussie on June 9, 2006 at 3:06 PM | PERMALINK
I don't imagine Hatch or anyone else wants to punish patriotic Americans who burn the flag for all the right reasons, but I'm yet to figure out how the law is supposed to draw the distinction between the respectful and the insolent.

That's not the law's job.

That's the job of the people selectively enforcing the law.

Duh.

Posted by: cmdicely on June 9, 2006 at 3:06 PM | PERMALINK

Sounds sufficiently "arbitrary and capricious" for the crowd presently running the One Party State.

Posted by: bill h. on June 9, 2006 at 3:08 PM | PERMALINK

Great, more CO2. What would AG say?

Posted by: Michael7843853 G-O in 08! on June 9, 2006 at 3:09 PM | PERMALINK

Can we get an amendment to ban politicans from wrapping themselves in the flag....? Or what about from hiding behind it?

But hey, why not burn the flag? After all, we're already shredding the Constitution....

Posted by: Stefan on June 9, 2006 at 3:10 PM | PERMALINK

Maybe Bush can look deep into the flag-burner's eyes to get a sense of his soul....after all, it worked with Putin....

Posted by: Stefan on June 9, 2006 at 3:12 PM | PERMALINK

There is also a "Good" way and a "bad" way to burn the flag.

Last year, during a learning excercise, my Boy Scout troop "Retired" a flag - the flag is held over a fire, scouts on either side, holding the flag at it's ends, fire under the center of the flag.

As the center catches fire, the scouts walk closer so that more of the flag can be in the fire, until only the parts they are holding are not yet burned, then those are tossed into the flames.

This way, not one part of the flag will ever touch the ground, it goes from the respectful scout's hand, directly into the flames.

However, in this training exercise, these scouts, who weren't properly instructed, just dropped the flag on the fire, and when the fire was done, in the morning, there were still visible scraps of cloth mixed in with the ashes, laying on the ground. The scouts were brought out, and taught about how to properly retire a flag with respect.

That said - I still think that Americans should all burn a flag, disrespectfully, on the 4th of July - to celebrate the fact that we still have the RIGHT to do so.

Posted by: Osama_Been_Forgotten on June 9, 2006 at 3:14 PM | PERMALINK

It's definitely already illegal to burn a McDonalds flag, especially if it's not yours.

Don't ask me why I know this.

Posted by: eckersley on June 9, 2006 at 3:16 PM | PERMALINK

Very simple. Just smell the nose of the perpetrator.

It will be very easy to find the Bushbrownnosers, the good flag burners.

Posted by: nut on June 9, 2006 at 3:16 PM | PERMALINK

Will it be illegal to roast marshmallows above the burning flag?

Posted by: craigie on June 9, 2006 at 3:17 PM | PERMALINK

Certainly the law is capable of distinguishing between respect and insolence -- you'd have a trial and determine what the person intended when he/she burned the flag. The question is, as Steve suggests earlier, whether it's at all consistent with our constitutional traditions to punish someone simply for their thoughts -- and if the proponents of the amendment think the answer is yes, they're hypocrites if they also oppose hate crime laws on the grounds that that's only punishing the thoughts in the criminal's head.

Posted by: JHS on June 9, 2006 at 3:19 PM | PERMALINK

As the center catches fire, the scouts walk closer so that more of the flag can be in the fire, until only the parts they are holding are not yet burned, then those are tossed into the flames.

Sheesh. Is one allowed to drop the corner of the flag if one's hands have sustained first degree burns, or most one wait for third degree?

Is it a desecration if the flag touches, say, a stick that is holding it over the fire or will only human hands suffice?

I probably shouldn't joke but this Boy Scout method sounds pretty contrived to me.

Posted by: Tripp on June 9, 2006 at 3:21 PM | PERMALINK

isn't this the same reasoning for hate crimes -- punishing the thought behind the action?

Posted by: sampson on June 9, 2006 at 3:25 PM | PERMALINK

Flag burning. Again.

Gawd it's like Groundhog day.

I really have to give the Right their kudos: nothing like a completely specious ammendment to the Constitution to distract from substantive issues.

Posted by: cyntax on June 9, 2006 at 3:25 PM | PERMALINK
The question is, as Steve suggests earlier, whether it's at all consistent with our constitutional traditions to punish someone simply for their thoughts

Well, two points:
First, its clearly not contrary to our traditions, Constitutional or otherwise, to punish for the combination of an act and an intention -- many criminal laws do that.
Second, an amendment is often about changing Constitutional traditions.

The question, I think, is more fundamental than the Constitution but goes to the basic values underlying it and the idea of the United States -- does it respect the values of freedom central to American ideals embodied in the flag that we would punish people for "desecrating" the flag?

Seems to me we would be abandoning the substance of what the flag stands for to protect the symbol. The flag, it seems, is becoming America's golden calf.

Posted by: cmdicely on June 9, 2006 at 3:25 PM | PERMALINK

"Desecration" of the American flag is impossible to define and is therefore a pointless exercise and a waste of time. For example:

- If a beer-bellied biker wears a flag on his T-shirt, is that desecration?
- How about a beautiful, voluptuous blond that wears one as a bikini bottom? Is that desecration?
- What if I make a photocopy of a flag and burn that, is that desecration?
- What if a Boy Scout drops a flag on the ground during a flag-raising ceremony? Is that desecration?

Get the point? There are a million possible scenarios that no law could possibly address. Any rational person can see that this makes no sense and is merely a smoke screen to hide the GOP's utter failure in good governance and a cheap, meaningless attempt to appear "PC" (patriotically correct.

Posted by: Stephen Kriz on June 9, 2006 at 3:26 PM | PERMALINK
isn't this the same reasoning for hate crimes -- punishing the thought behind the action?

Or, say, murder, where we punish the intent to kill, but let people off with lessor or no punishment when they kill with different thoughts in their head.

Posted by: cmdicely on June 9, 2006 at 3:27 PM | PERMALINK

In the past two minutes I haven't been able to track this down but someone--believe it or not, I think it was Mario Cuomo--proposed during an earlier bout of flag burning madness that any anti-flag burning amendment should contain a clause saying, "This amendment shall now be construed to refer to burning to dispose of a worn flag."

It's still a very stupid idea, and you're right about the hypocrisy of favoring such an amendment while opposing hate crime laws.

Posted by: Karl Weber on June 9, 2006 at 3:27 PM | PERMALINK

Sounds like 'prior restraint" on Free Speech. It negates the First Amendment Right to Free Speech.
Congress can make no law against Free Speech.

You can buy a flag on Senator Hillary Clinton's web site, but you can't burn it to "protest" the war she voted for. But you can burn it to dispose of it in a ceremony to glorify war. That's prior restraint of Free Speech.

The flag burning amendment is "political" pandering. Ordinary Pandering is against the law and not protected by the Constitution.

When a person in high office Panders, the public dislikes it.

Posted by: deejaays on June 9, 2006 at 3:29 PM | PERMALINK

I meant "shall NOT be construed," not "now"

Karl Weber

Posted by: kweberlit on June 9, 2006 at 3:29 PM | PERMALINK

cmdicely: Seems to me we would be abandoning the substance of what the flag stands for to protect the symbol. The flag, it seems, is becoming America's golden calf.

It seems you're not alone in that supposition:

Gary May is a highly decorated former Marine who lost both of his legs during combat in Vietnam and serves as the chairman of Veterans Defending the Bill of Rights.

The pride and honor veterans like me feel is not in the flag itself, but in the principles the flag stands for and in the people who have defended them, said May in his testimony before the Senate Judiciary Committee in 1999.


Posted by: cyntax on June 9, 2006 at 3:32 PM | PERMALINK

You have no idea what you're talking about. The concept of mens rea is deeply ingrained into the American legal system. Virtually every crime "punishes thoughts" to some extent. The difference between involuntary amanslaughter and first degree murder depends entirely on 'thought', but can be the difference between three years in prison and death.

The problem with hate crime legislation is that it discriminates on the basis of race, like affirmative action. Like all true conservatives, I want racially neutral laws.

Posted by: American Hawk on June 9, 2006 at 3:32 PM | PERMALINK

I fully support one's right to burn any flag as an expression of personal freedom.

But this is a silly comparison. For one thing, in a proper retirement ceremony, the entire flag isn't burned. If I'm remembering right, the star field is cut from the flag and buried, while the stripes are then burned.

Burning is not the central issue here, and everyone knows it. Pretending otherwise, and trying to draw some stupid comparisons to hate crime laws, of all things, is idiotic.

Posted by: Buhallin on June 9, 2006 at 3:34 PM | PERMALINK

"ThoughtCrime" is now our most basic law!

Posted by: R.L. on June 9, 2006 at 3:37 PM | PERMALINK

Will it be illegal to roast marshmallows above the burning flag?

No. But they must be lily-white marshmallows, none of those gay pink and pale green marshmallows they sell for the liberal crowd.

Seems to me we would be abandoning the substance of what the flag stands for to protect the symbol.

Yes, it's always seemed that way to every American who can distinguish between principle and PR.

Posted by: shortstop on June 9, 2006 at 3:42 PM | PERMALINK

You have no idea what you're talking about. The concept of mens rea is deeply ingrained into the American legal system.

Well, this goes beyond the issue of mens rea--which focuses on the level of intentionality--and touches on motive, which is rarely an element of a crime, aside from hate crimes. The issue isn't whether one burns a flag intentionally or not--which is a typical mens rea distinction. The issue is why one intended to burn it.

Posted by: dj moonbat on June 9, 2006 at 3:42 PM | PERMALINK

dj moonbat, I think american hawk is closer to the correct answer. Motive matters - think of use of deadly force in defense of oneself or another. In that case, motive, not just intent, matters, to some degree.

What's particularly noxious here, and to a lesser degree hate crimes, is the PRIMACY of motive, rather than simply being a secondary consideration.

Posted by: Anonymous on June 9, 2006 at 3:45 PM | PERMALINK

Like all true conservatives, I want racially neutral laws.
Posted by: American Hawk

Racially neutral justice? Not so much.

One of your fairer posts, chickenhawk, but the counter-argument would be, if the cause of the crime is not racially-neutral, neither should the punishment. You illustrate it perfectly in the first segment of your post.

Posted by: MeLoseBrain? on June 9, 2006 at 3:45 PM | PERMALINK

"Desecration" is impossible to define?! You libs really can;t tell the difference between someone reverently disposing of a flag vs. some yahoo pissing on and then burning it?

Posted by: Don P. on June 9, 2006 at 3:48 PM | PERMALINK

Hawk -
The difference between manslaughter and murder is intent, not thought.
As in -- did I accidentally let the flag catch fire or did I deliberately light it? And as to 1st, 2nd degree, etc, -- did I plan to light it in advance, or did I join a demonstration in the heat of the moment?
The Manslaughter / murder distinction doesn't address WHY I committed the act. Any definition of "desecreation" does (as do hate crime laws).

Posted by: Krowe on June 9, 2006 at 3:49 PM | PERMALINK

There are good arguments against a flag-burning amendment, but this isn't one of them. "What you're thinking while you act" is part of the definition of fraud, for example.

Posted by: Seth Gordon on June 9, 2006 at 3:50 PM | PERMALINK

There are a lot of variations on this point:

Virtually every crime "punishes thoughts" to some extent. The difference between involuntary amanslaughter and first degree murder depends entirely on 'thought', but can be the difference between three years in prison and death.

This is a very valid distinction, and thought also distinguishes between varying degrees of murder. And further, no rational person would argue that it shouldn't be so. While this is a decent argument, I would answer with this:

Actions that result in a person's death are always a crime. Thought and intent can mitigate the severity of the crime, but it is always a crime nonetheless, although prosecutors may chose not to pursue them. What is unique here is that thoughts determine the "legal vs. criminal" distinction, not the severity of the criminal offense.

But really what flag descration laws are is polictal correctness run amok. We want to stop a form expression because certain peopel find it offensive. If that is not political correctness, I don't know what is. Now, I will agree 100% that the group that is generally being cited as being offended (veterans) is absolutely deserving of our esteem, but the fact remains is that we are making a law so people don't get their feelings hurt. And that is patently ridiculous.

Posted by: DCfreakingM on June 9, 2006 at 3:50 PM | PERMALINK

>The problem with hate crime legislation is that it discriminates on the basis of race, like affirmative action. . Like all true conservatives, I want racially neutral laws.

And like all true conservatives these days you ignore facts. Hate crime laws are racially neutral. One of the earliest prosecutions for under a hate crime statute was of a black man who beat up a white guy for racial reasons.

Posted by: Gar Lipow on June 9, 2006 at 3:51 PM | PERMALINK

The fraud comparison is inaccurate.
Fraud is a crime because it involves deceipt to take property from another. It doesn't matter if you're doing it for profit, or to punish someone, or to see if you can get away with it, or whatever. It's still the act that's the crime, not the intent.

Posted by: Krowe on June 9, 2006 at 3:55 PM | PERMALINK

It will be a very sad day indeed for this country if the rights of symbols are given preference over the rights of individuals.

Posted by: Roddy McCorley on June 9, 2006 at 3:56 PM | PERMALINK

From TEXAS v. JOHNSON, 491 U.S. 397 (1989):

"The government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. ... If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

By that reasoning, the proposed amendment contradicts the First Amendment. In effect, it would repeal a small portion of the First Amendment. Now, it's normally no big deal that constitutional amendments repeal portions of the existing Constitution; that's sort of the point of amendments. But it might be slightly different when an amendment contradicts "a bedrock principle underlying the First Amendment." In fact, you might very well end up with a Supreme Court being asked to decide which Amendment, the First or the Flag-Burning, takes precedence in a particular case, and why: that would be the sort of situation that the framers of the Flag-Burning Amendment were hoping to pre-empt.

Posted by: Tim Morris on June 9, 2006 at 3:57 PM | PERMALINK

In past debates over flag-burning, the definition of a bad flag burner came from the U.S. Flag Code (4 US Code 1). http://suvcw.org/flag.htm


(k) The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.


It's right there in existing U.S. law. It's no secret, and there's no thought crime involved. I'm sure the amendment would be along the lines of "it's against the law to burn the flag except in accordance with 4 U.S. Code 1 (k)." Which enshrines thought-crime in law, without having to describe it.


Posted by: vggrob on June 9, 2006 at 3:57 PM | PERMALINK

I agree that this argument is stupid.

Nobody who burns a flag "disrespectfully" is going to argue that they were holding an honorable flag retirement ceremony at a "Down with American Imperialism" rally. By burning a flag as a form of protest, they're already making a statement. That's the intent of the act. Trying to weasel out of it with lawyerly intent is something a Republican would do. Not a legitimate protestor.

It's the implied speech of "I disagree with the policies of the US" that they want to ban. Implying otherwise is just silliness.

And especially trying to parallel it with "Hate Crime Laws" - that's just assinine.

Posted by: Osama_Been_Forgotten on June 9, 2006 at 3:58 PM | PERMALINK

So who determines what's dignified and what's desecration?
That's where the thought police come in.

Posted by: Krowe on June 9, 2006 at 3:59 PM | PERMALINK

Thank you, OBF - finally something we agree upon - better be careful though, or someone is going to say you are "Charlie" ; )

Posted by: Don P. on June 9, 2006 at 4:01 PM | PERMALINK
In fact, you might very well end up with a Supreme Court being asked to decide which Amendment, the First or the Flag-Burning, takes precedence in a particular case, and why: that would be the sort of situation that the framers of the Flag-Burning Amendment were hoping to pre-empt.

But that's a simple question to resolve; if they conflict, a newer amendment to the Constitution wins over an older Constitutional provision. Unless, of course, the newer amendment would give states unequal representation in the Senate.

Posted by: cmdicely on June 9, 2006 at 4:06 PM | PERMALINK

For one thing, in a proper retirement ceremony, the entire flag isn't burned. If I'm remembering right, the star field is cut from the flag and buried, while the stripes are then burned.

May the star field be buried anywhere? Is there a required depth?

I'm amazed what some people dredge up from who knows where when they are sitting in front of the internet with google available.

Posted by: Tripp on June 9, 2006 at 4:07 PM | PERMALINK
The problem with hate crime legislation is that it discriminates on the basis of race, like affirmative action.

Huh? The closest thing to a reasonable argument for that I can see is a bizarre extension of Loving v. Virginia logic that still falls short, because most hate crimes laws don't care if the hate criminal is or isn't a member of the group the hate is directed at.

Posted by: cmdicely on June 9, 2006 at 4:09 PM | PERMALINK

The point is not whether there is a mental component to crimes. Obviously there is with respect to knowledge and intent, in such crimes as burglary, fraud or homicide. Making a crime depend on motive is rarer. Hate crime laws are all I can think of.

But the real problem is that there is no existing criminal law where the crime depends on whether your motive is to honor the U.S. or to insult it. If the same act, burning the flag, is or is not a crime based purely on the words you say (hurray for the U.S., down with the U.S.) while doing the burning, then the result is to punish people for the content of their expression. And it is that kind of thought that should not be crime.

If flag burning laws are passed, then the decision as to whether the burning is dignified or descreation will be left to juries, who will look at the actions of the burner, and decide whether they show approval or disapproval of the U.S.

And disapproval of the U.S. thus becomes a crime.

Posted by: glenn on June 9, 2006 at 4:15 PM | PERMALINK

C'mon, all the crap that's going on in Washington at the moment, and THIS is what you focus on? Scouts retiring flags?

Can we get back to the NSA and the runaway wiretapping, please?

Posted by: kwo on June 9, 2006 at 4:15 PM | PERMALINK

I think this is much more importan, kwo.

Posted by: Don P. on June 9, 2006 at 4:19 PM | PERMALINK

Motive matters - think of use of deadly force in defense of oneself or another.

That plays out in the form of an affirmative defense, rather than being an element of the underlying crime. What's more, it's not enough that one be motivated to protect oneself or another--the danger must be actual, or reasonably perceived to be so (that is to say, it can't be "all in your head.") A self-defense defense is not about rewarding virtuous motives; it's about saying we won't punish killers who reasonably believed they had no choice.

The real distinction between a flag desecration amendment and conventional hate crime legislation is that the underlying conduct in a hate crime--murder, assault, vandalism, rape--is always criminal in itself, and the hate is an added layer. Here, one could burn a flag in a way that conformed fully with the local fire codes, just like the flag-loving Boy Scouts, and still get tagged for bad motives. That is, the motivation itself is being punished, and not the ensuing act.

Posted by: dj moonbat on June 9, 2006 at 4:20 PM | PERMALINK
Actions that result in a person's death are always a crime. . Thought and intent can mitigate the severity of the crime, but it is always a crime nonetheless, although prosecutors may chose not to pursue them.

Killing someone with reasonable fear that they are about to wrongfully inflict death or seriously bodily injury on you, or in certain cases on another, is not a crime; there are a number of other cases where actions resulting in death are not crimes.

You are completely wrong.

What is unique here is that thoughts determine the "legal vs. criminal" distinction, not the severity of the criminal offense.

Its not at all unique in that respect. Virtually every crime has a required mental state along with a prohibited act , either of which, if missing, means there is no crime.

What is unique about the flag burning law that enemies of freedom would like to impose on the US is not that thoughts alone can make the difference between criminal and non-criminal (that's common), nor that thought alone is prohibited (as its not -- there is a required act which must be connected to that thought to make the crime), but that the prohibited mental state is the intent to convey an unwelcome political message.

The intent of this admendment is to allow a law that goes to the extreme of making a political viewpoint which, but for the particular method of expression, would be Constitutionally protected, the difference between a completely innocent act and a criminal act.

Posted by: cmdicely on June 9, 2006 at 4:21 PM | PERMALINK

actually, the problem (whether one finds this significant or not is, of course, a separate matter) with "hate crimes" statutes is that they distinguish between different kinds of hate (or at least objects of hate). i.e. "hate crimes" statutes appear to assume as a matter of course that it is worse for me to have killed my mother-in-law because she was Inuit than to have killed her because she was my mother-in-law.

personally, I think a flag burning amendment is an atrociously stupid idea. with that said, Benen's comment is asinie as well. the legal system is perfectly capable of distinguishing between someone who is attempting to burn a flag out of spite and someone who is attempting to dispose of a flag properly. and the courts would construe an amendment in that fashion, whether it contained language to that effect or not.

Posted by: Nathan on June 9, 2006 at 4:21 PM | PERMALINK

Let's face it, there's nothing dumber in American politics than these flag burning amendments. The flag is a symbol not a relic and modifying our constitution to "protect" is as purely absurd and insults the common sense of all Americans.

I'm embarrassed everytime some "conservative" brings it up.

Posted by: Hacksaw on June 9, 2006 at 4:22 PM | PERMALINK

We ought not be discussing the minutia of flag etiquette, or the arguments against a flag burning ammendment.

Liberals and Conservatives alike should be united behind the premise that for the government to exercise control over individual behavior, there must be a compelling public interest.

In that case of flag burning, there is none.

Posted by: SteveK on June 9, 2006 at 4:23 PM | PERMALINK

Charlie, posting as "Don P", wrote: I think this is much more importan, kwo.

That's because you think whatever you are told to think by the right-wing Republican propaganda network.

Posted by: SecularAnimist on June 9, 2006 at 4:25 PM | PERMALINK

In junior high we smoked an old flag that our social studies teacher said was made out of hemp. We need better teachers.

Posted by: Eric on June 9, 2006 at 4:28 PM | PERMALINK

Um, have I missed a bunch of recent flag burning incidents? Have there been any recently? Within the past year? Decade?

/rhetorical question


Posted by: Cognitive Dissonance on June 9, 2006 at 4:28 PM | PERMALINK

I disagree that it's easy to determine intent to desecrate.
If we limit "desecration" to burning, then yeah, it may be easy to discriminate between the boy scouts and the protestors.
But what about other non-conventional displays (clothes, facsimiles, inaccurate representations, commercial use, etc.)? Who is to say if these displays are meant to be reverent or ironic or what?

Posted by: Krowe on June 9, 2006 at 4:28 PM | PERMALINK

In that case of flag burning, there is none.
Posted by: SteveK on June 9, 2006 at 4:23 PM | PERMALINK

Yes there is. The public is interested in seeing all America-Hating Flag-burning abortion-permitting hybrid-driving welfare-loving terrorist-supporting communist smelly hippy tree hugging liberals go to jail.

Even better when they skip bail and we can watch Dog the Bounty Hunter chase them down on our Plasma Screen TV while we're driving our 2mpg H2 down the highway at 90 mph.

Posted by: American Fuck on June 9, 2006 at 4:30 PM | PERMALINK

Krowe:

I guarantee you that the courts would construe "desecrate" narrowly.

but, like I said, I think the whole idea is dumb...I just don't think that problematic statutory construction is one of the reasons why its dumb.

Posted by: Nathan on June 9, 2006 at 4:32 PM | PERMALINK

Um, have I missed a bunch of recent flag burning incidents? Have there been any recently? Within the past year? Decade?

Where have you been? I hear that in Brazil they convert their old flags to ethanol to fuel their cars and there is even some left over to prevent abortions.

Posted by: Tripp on June 9, 2006 at 4:33 PM | PERMALINK
Making a crime depend on motive is rarer. Hate crime laws are all I can think of.

I'm not sure what the distinction you are drawing between "motive" and "intent" is here; if you mean simply, by "making a crime depend on motive", that the crime have a required intent other than the acheivement of an act which is itself an element of the crime (i.e., for murder, where the act is the killing, and the required intent -- for some bases of murder liability -- is the intent to kill), well, that's common, too. All inchoate crimes (attempts, conspiracy, etc.) work that way, many statutes provide murder liability based on killing with intent to do something other than kill, among the ways the Espionage Act can be violated is revealing certain secrets with the intent that they be used to harm the United States or benefit its enemies, etc.

If that's the distinction you were trying to make, it is not true that flag burning or hate crimes laws would be even remotely unique in distinguishing based on motive.

Posted by: cmdicely on June 9, 2006 at 4:33 PM | PERMALINK

I think the whole idea is dumb...I just don't think that problematic statutory construction is one of the reasons why its dumb.

Yeah. There's nothing legally impermissible about the idea. It's just unnecessary, and unseemly in a country that claims to value the free exchange of ideas.

Posted by: dj moonbat on June 9, 2006 at 4:34 PM | PERMALINK
I guarantee you that the courts would construe "desecrate" narrowly.

Narrowly how? So it only applied to flags that were, prior to being "desecrated", actually in use as religious icons?

Posted by: cmdicely on June 9, 2006 at 4:34 PM | PERMALINK
Let's face it, there's nothing dumber in American politics than these flag burning amendments.

I dunno, how to weigh the stupidity of an unprovoked and poorly planned war of aggression in the middle of and taking resources from a provoked war against terrorists who actually attacked us against the stupidity of a flag burning amendment? There doesn't seem to be a simple measure to apply...

Posted by: cmdicely on June 9, 2006 at 4:36 PM | PERMALINK

I was at a Boy Scout Jamboree in the Sixties where they did a ritual flag burning to retire a huge flag from a US war ship. Now, as an adult, I want to burn the fucking US flag all of the time.

Posted by: Hostile on June 9, 2006 at 4:36 PM | PERMALINK

Nathan --
I agree that there are bigger problems with a flag burning amendment than enforcement and interpretation, but I don't accept your guarantee of what the courts would do (at least not in the long run). It's a slippery slope from outrageous descration to insufficient reverence.

I also like your point about hate crimes. I was once attacked on the street by three young strangers. They happened to be of another color than I, and one kept yelling racial epithets. Another kept mumbling about me "messing his girl", like he thought I was somebody else. The third said nothing.
They never were caught, so I don't know if their inferred motive would've affected their punishment. But I really don't care why they beat me up. I'm just mad that they did.

Posted by: Krowe on June 9, 2006 at 4:42 PM | PERMALINK

Here's a funny political satire article from mark joking about mass arrests of boy scouts and veterans if the flag amendment were ever passed... complete with some pretty spot on links to news articles showing the hypocrisy of so many of the hyperbolic statements made by supporters of the amendment.

http://snarkster.com/2006/03/flag-desecration/

Posted by: Augustus on June 9, 2006 at 4:58 PM | PERMALINK

What is a "flag" for the purposes of the ammendment?

What if I drew a flag and burned it? What if the drawing was clearly not a US flag, but non-the-less was identifiable as a representation of it?

What if I burned a photograph? Maybe a black and white photograph.

Pass the flag burning ammendment, and I know what will happen: people will be seeking out such barely-not-a-flag symbols and desecrating them in protest.

Posted by: 2.7182818 on June 9, 2006 at 5:04 PM | PERMALINK

The important thing to remember with the flag burning amendment is that it demonstrates what has often been said about our enemies:

They hate us for our freedom.

Posted by: cmdicely on June 9, 2006 at 5:17 PM | PERMALINK

cmdicely,

Motive and intent are distinct concepts, in both law and other contexts. A motive is a reason for acting, not the intent to act.

All inchoate crimes (attempts, conspiracy, etc.) work that way, many statutes provide murder liability based on killing with intent to do something other than kill,

Yes, murder is sometimes defined to include crimes in which the intent is something other than the intent to kill. That's obviously not the same thing as defining a different crime based on motive, which is what hate crime laws do.

among the ways the Espionage Act can be violated is revealing certain secrets with the intent that they be used to harm the United States or benefit its enemies, etc.

This is also irrelevant to the motive/intent distinction. The fact that the crime of espionage can involve more than one kind of motive is not the same thing as defining a different crime based on motive.

Posted by: GOP on June 9, 2006 at 5:19 PM | PERMALINK
Motive and intent are distinct concepts, in both law and other contexts. A motive is a reason for acting, not the intent to act.

Intent, in law, is sometimes the "intent to act", and more often the intent to acheive a particular end with the act -- i.e., a reason for acting.

This is true, for instance, in the Espionage Act discussed previously.

This is also irrelevant to the motive/intent distinction. The fact that the crime of espionage can involve more than one kind of motive is not the same thing as defining a different crime based on motive.

No, its not, because if you lack the required motive for a particular crime under the Espionage Act, you are not guilty of any crime. (Now, you may qualify for a different crime under the same act with a different motive or other mental state, and certain offenses under the act may have multiple alternative mental states, but the presence or absence of the motive can be enough to make the difference between a crime under the Act and no crime at all, or a between one crime and a completely different crime, so it is precisely parallel to what is suggested for flag burning and hate crimes.)

Posted by: cmdicely on June 9, 2006 at 5:26 PM | PERMALINK

actually, the problem (whether one finds this significant or not is, of course, a separate matter) with "hate crimes" statutes is that they distinguish between different kinds of hate (or at least objects of hate). i.e. "hate crimes" statutes appear to assume as a matter of course that it is worse for me to have killed my mother-in-law because she was Inuit than to have killed her because she was my mother-in-law.

They assume no such thing. The defining characteristic of a hate crime is the motive of the perpetrator, not the characteristics of the victim. You would be guilty of a hate crime for murdering your inuit mother-in-law only if your motive for murdering her was hatred of inuits, or some other kind of hatred recognized under the relevant hate crime statute.

Posted by: GOP on June 9, 2006 at 5:29 PM | PERMALINK

Here's something more important than flag burning.

New Data Clearly Links Storms and Warming
by Stephen Leahy
June 8, 2006
Inter Press Service

Excerpts:

Stronger and more frequent hurricanes in summer and stronger winter storms are clearly the result of climate change, according to new scientific studies reported at the 40th annual Canadian Meteorological and Oceanographic Society (CMOS) congress in Toronto.

"Climate change is real, the Kyoto Protocol is an important first step, but we need to do a lot more," Ian Rutherford, CMOS executive-director, told IPS.

"(T)he scientific evidence dictates that in order to stabilise the climate, global reductions in greenhouse gas emissions need to go far beyond those mandated under this Kyoto Protocol," said a statement endorsed by the CMOS membership representing more than 800 public and private scientists.

[...]

Using sea surface temperatures of the tropical Atlantic Ocean over many decades, Robert Scott, an oceanographer at the University of Texas, showed that the area that spawns hurricanes has grown dramatically in recent years.

Scott's data shows that since 1970, the eastern side of the Atlantic, near the coast of Africa, has become warmer, topping the 26.5 C. temperature threshold for hurricanes to form. That means that the traditional area where hurricanes get their start has expanded by hundreds of kilometres.

In fact, Scott said, hurricanes have been getting started an average of 500 kilometres further east since 1970, spending more time over warmer water.

While there are other factors involved in hurricane formation, the much larger pool of warm "birthing" waters also means storms can become stronger, since warm water provides fuel for them to grow.

Scott is convinced that global warming has made hurricanes more powerful. "Humanity has had a discernible impact on hurricanes," he said in media reports.

[...]

There is convincing new evidence that global warming will produce more powerful winter storms over the mid-latitudes of the Northern and Southern hemispheres, Steven Lambert, a climate expert at the Meteorological Service of Canada, told the conference.

Lambert examined how future greenhouse gas emissions will affect low pressure systems during the winter using nearly all of the most current computer climate models. The models all concurred that as levels of greenhouse gases in the atmosphere rise, low pressure systems, or cyclones as they're called, become stronger but form less often.

"There's a direct relationship between the changes in magnitude of cyclonic events and concentration of greenhouse gases," Lambert said in an interview.

Lambert told IPS that this affect is likely the result of higher temperatures triggering higher rates of evaporation. This means more latent heat is available, resulting in stronger lower pressure systems. Once those huge systems lose all their energy, it may take longer to form news ones, and that may be why the models show fewer cyclones, he said.

Posted by: SecularAnimist on June 9, 2006 at 5:32 PM | PERMALINK

Intent, in law, is sometimes the "intent to act", and more often the intent to acheive a particular end with the act -- i.e., a reason for acting.

Not exactly. The law doesn't give a shit usually whether you killed your wife 'cause you hate the bitch or wanted insurance money; whether you robbed a store to buy bread for your children or dope; or whether you were speeding 'cause you were in a hurry or just a thrill junkie. In all three instances, though, the law insists on volition.

Posted by: dj moonbat on June 9, 2006 at 5:32 PM | PERMALINK
The defining characteristic of a hate crime is the motive of the perpetrator, not the characteristics of the victim. You would be guilty of a hate crime for murdering your inuit mother-in-law only if your motive for murdering her was hatred of inuits, or some other kind of hatred recognized under the relevant hate crime statute.

How does this differ from:

hate crimes" statutes appear to assume as a matter of course that it is worse for me to have killed my mother-in-law because she was Inuit than to have killed her because she was my mother-in-law.

(Note: the latter, as GOP seems to have missed, refers to the motive -- "because she was an Inuit" -- of the attacker, versus an alternate motive -- "because she was my mother-in-law".)

Posted by: cmdicely on June 9, 2006 at 5:33 PM | PERMALINK

Why get into the weeds re: motives? A significant portion of what the American Flag stands for--or used to stand for--can be concisely summarized as, "You have the freedom to burn me."

Valuing the symbol itself to the point of contradicting its meaning is by far the greater offense.

Posted by: Lionel Hutz, attorney-at-law on June 9, 2006 at 5:34 PM | PERMALINK

This amendment should work about as well as the war on drugs has.

Posted by: Where's osama on June 9, 2006 at 5:36 PM | PERMALINK

cmdicely,

Intent, in law, is sometimes the "intent to act", and more often the intent to acheive a particular end with the act -- i.e., a reason for acting.

No, in law, the reason for acting is called "motive." Intent refers to whether the act was willed or deliberate, rather than accidental (unintended).

This is true, for instance, in the Espionage Act discussed previously.

Your "discussion" of the Espionage Act was completely irrelevant to the motive/intent distinction that I have described.

No, its not, because if you lack the required motive for a particular crime under the Espionage Act, you are not guilty of any crime.

Hate crime laws define a separate crime (or, to be more precise, a separate range of criminal penalties) based on the motive of the criminal. Quote the provision of the Espionage Act that you believe does this. Perhaps there is such a provision, but you haven't shown that, and what you have said about the Espionage Act is completely irrelevant to the motive/intent distinction in law.

Posted by: GOP on June 9, 2006 at 5:41 PM | PERMALINK

That said - I still think that Americans should all burn a flag, disrespectfully, on the 4th of July - to celebrate the fact that we still have the RIGHT to do so.

You know, I actually like that idea, even though it completely ruins the symbolism of burning the flag because it has been soiled by our politicians.

Posted by: Avedon on June 9, 2006 at 5:42 PM | PERMALINK
Not exactly.

No, exactly.

The law doesn't give a shit usually whether you killed your wife 'cause you hate the bitch or wanted insurance money; whether you robbed a store to buy bread for your children or dope; or whether you were speeding 'cause you were in a hurry or just a thrill junkie. In all three instances, though, the law insists on volition.

Well, no, that's factually incorrect; speeding, as a public offense (usually a minor one) is generally a strict liability offense with no intent requirement; the others, though, are examples where the intent required is "intent to act". That does not, in any way, contradict that some parts of the law turn on "intent to act" (as in your examples) and some turn on "intent to acheive a particular end through a given action", or, phrased another way, "reason for acting".

Conspiracy, espionage as discussed above, etc., are all examples where the intent to produce a given end by the act done is an element, not merely the intent to commit the concrete act that forms the actus reus of the crime. And theft crimes often require intent to permanently deprive the owner of the property, not merely intent to do the immediate taking away which is the actus reus, even though such intent is so readily inferred from the taking in most circumstances that isn't that much of a practical issue.

Lots of examples, really. The purpose or motive of the act is often an element of the definition of a crime.

Posted by: cmdicely on June 9, 2006 at 5:43 PM | PERMALINK

Conspiracy, espionage as discussed above, etc., are all examples where the intent to produce a given end by the act done is an element

Conspiracy is an agreement to commit some other crime. The law doesn't specify the motive as an element, just an intentional agreement with others to commit a crime.

Speeding was a bad example.

Posted by: dj moonbat on June 9, 2006 at 5:47 PM | PERMALINK

cmdicely,

How does this differ from:
"hate crimes" statutes appear to assume as a matter of course that it is worse for me to have killed my mother-in-law because she was Inuit than to have killed her because she was my mother-in-law."

Are you really incapable of understanding the difference between "motive of criminal" and "characteristics of victim." His mother-in-law wouldn't even need to be inuit in order for his crime to qualify as a hate crime.

Posted by: GOP on June 9, 2006 at 5:47 PM | PERMALINK

among the ways the Espionage Act can be violated is revealing certain secrets with the intent that they be used to harm the United States or benefit its enemies, etc.

If this is true, and it's not the more typical "with the knowledge" that the information could hurt the United States, then this would be one of the comparatively rare instances when one's goals are specified as elements of a crime.

But GOP is precisely right. Motive is almost never an element of a crime. Why you persist in conflating specific intent and motive, I can't fathom.

Posted by: dj moonbat on June 9, 2006 at 5:52 PM | PERMALINK

cmdicely,

Again, quote the provision of the Espionage Act that you believe defines a separate crime, or a separate range of criminal penalties, based on the motive of the criminal. This is what hate crime statutes do. Perhaps the Espionage Act does it too, but you haven't shown that.

Posted by: GOP on June 9, 2006 at 5:54 PM | PERMALINK

Say a Desecrator finds a Boy Scout, and convinces him to burn a flag. Both of them have a specific intent to burn a flag. Only one of them has the motive to desecrate. There are very few circumstances under the criminal law wherein the Boy Scout's pure motives would save him from a conspiracy rap; this would seem to be one of them.

Posted by: dj moonbat on June 9, 2006 at 6:02 PM | PERMALINK
No, in law, the reason for acting is called "motive." Intent refers to whether the act was willed or deliberate, rather than accidental (unintended).

This is misleading, if not actually completely wrong. Intent, as a description of the mental state component of a crime, refers to the fact that some end was willed (in tort, rather than criminal law, substantial certainty than an end will result is also included within intent, but criminal intent is narrower.) Where that end corresponds to the actus reus of the crime -- as in a statute that says "Whoever intentionally [does described act]" -- "intent" is as you describe.

When the end willed does not correspond to the "actus reus" -- as in a statute that says "Whoever [does described act] with the intent of [producing descibed result]" -- it is still is called "intent".

"Motive" is, in my experience, used to describe something that is the reason for acting where this is not an element of the crime, particularly where it is sought to be proved (or cast in doubt) as part of an attempt to support (or rebut) the conclusion that the defendant actually committed the crime. It thus differs from the second sense of "intent" described above not in its fundamental nature, but in the fact that it is not legally essential to the crime in question.

Hate crime laws define a separate crime (or, to be more precise, a separate range of criminal penalties) based on the motive of the criminal. Quote the provision of the Espionage Act that you believe does this.

Almost every subsection of the Espionage Act does that, as you have defined motive. For just one example, 18 USC 794(a) makes criminal doing any of a wide range of prohibited acts "for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation", which, as you have defined "motive" creates one motive requirement (the "purpose of obtaining information respecting the national defense) without which there is no crime at all, and an additional element that alternately requires a particular motive ("intent...that the information is to be used to the injury of the United States") or a particular factual circumstance ("reason to believe that the information is to be used to the injury of the United States"). So, again, the "motive" makes the difference between crime and no crime.

Posted by: cmdicely on June 9, 2006 at 6:11 PM | PERMALINK
Conspiracy is an agreement to commit some other crime.

Conspiracy requires an agreement to acheive some unlawful purpose; the end itself need not be criminal. The agreement is the prohibited act, the unlawful end is the prohibited purpose.

But GOP is precisely right. Motive is almost never an element of a crime.

Motive, as GOP has defined it -- reason for acting -- overlaps with specific intent and is often an element of a crime.

Posted by: cmdicely on June 9, 2006 at 6:20 PM | PERMALINK

Intent, as a description of the mental state component of a crime, refers to the fact that some end was willed...

No, specific intent refers to the fact that some specific end was willed. "I want to beat person x" would be an example.

Now, look at the hate crime variant: "I want to beat person x, because he is race y, and I hate those guys." The added layer of criminality turns on why that specific intent is desired--i.e., the perpetrator's motive.

Posted by: dj moonbat on June 9, 2006 at 6:21 PM | PERMALINK

This amendment should work about as well as the war on drugs has.

Clearly, we need A Constitutional Amendment that makes bonghits unconstitutional. Get on it, congress!

Posted by: cdc on June 9, 2006 at 6:23 PM | PERMALINK
Are you really incapable of understanding the difference between "motive of criminal" and "characteristics of victim." His mother-in-law wouldn't even need to be inuit in order for his crime to qualify as a hate crime.


"Because his mother-in-law is an Inuit" is a motive, not a characteristic. (Now, its a motive that happens to center around a characteristic, but its a motive.) A law which made the the characteristic of the victim central would prohibit attacking his mother-in-law if she was an Inuit, whether or not that was the motive for the attack.

Clearly, you are the one with the problem distinguishing motive of the attacker from personal characteristic of the victim.

Relevant to actual hate crimes laws, rather than your fantasies of them, the law held up as the central federal hate crimes law (18 USC 245) makes it a crime, among other things, to "by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with [...] any person because of his race, color, religion or national origin and because he is or has been [engaging in any of a wide range of federally-protected activities]".

Posted by: cmdicely on June 9, 2006 at 6:25 PM | PERMALINK

See, it's the "because" part that's important.

Posted by: dj moonbat on June 9, 2006 at 6:30 PM | PERMALINK
No, specific intent refers to the fact that some specific end was willed. "I want to beat person x" would be an example.

So does general intent, the difference is in general intent the willed end is the actus reus, in specific intent the actus reus is a means of acheiving the willed end.

Posted by: cmdicely on June 9, 2006 at 6:32 PM | PERMALINK

This is also more important than flag burning.

NASA Shelves Climate Satellites: Environmental Science May Suffer
By Beth Daley
The Boston Globe
June 9, 2006

Excerpts:

NASA is canceling or delaying a number of satellites designed to give scientists critical information on the earth's changing climate and environment.

The space agency has shelved a $200 million satellite mission headed by a Massachusetts Institute of Technology professor that was designed to measure soil moisture - a key factor in helping scientists understand the impact of global warming and predict droughts and floods. The Deep Space Climate Observatory, intended to observe climate factors such as solar radiation, ozone, clouds, and water vapor more comprehensively than existing satellites, also has been canceled.

And in its 2007 budget, NASA proposes significant delays in a global precipitation measuring mission to help with weather predictions, as well as the launch of a satellite designed to increase the timeliness and accuracy of severe weather forecasts and improve climate models.

The changes come as NASA prioritizes its budget to pay for completion of the International Space Station and the return of astronauts to the moon by 2020 - a goal set by President Bush that promises a more distant and arguably less practical scientific payoff. Ultimately, scientists say, the delays and cancellations could make hurricane predictions less accurate, create gaps in long-term monitoring of weather, and result in less clarity about the earth's hydrological systems, which play an integral part in climate change.

"Today, when the need for information about the planet is more important than ever, this process of building understanding through increasingly powerful observations ... is at risk of collapse," said Berrien Moore III, director of the Institute for the Study of Earth, Oceans, and Space at the University of New Hampshire.

[...]

While NASA is proposing similarly deep cuts to other important science programs such as astrobiology - the search for life in space - the earth science mission cancellations and delays take on greater significance, some scientists say, given recent allegations by a top NASA researcher and other government scientists that the Bush administration tried to silence their warnings about global warming.

[...]

Almost every planned earth studying mission, all that have some contribution to understanding global warming, has been affected. The $100 million Deep Space Climate Observatory, already built, was canceled earlier this year. First proposed by then-Vice President Al Gore in the 1990s, the satellite was planned to give researchers a continuous picture of the sunlit surface of the earth and allow the first direct measurements of how much sunlight is absorbed and emitted, key information that could serve as an indicator of global warming.

The Global Precipitation Measurement mission, designed to record rain, snow, and ice fall more accurately, has been delayed 2 1/2 years. It is meant to replace another satellite whose mission was extended last year. Now, scientists do not believe the older satellite will last until the Global Precipitation mission is launched, creating a big gap in data collection for weather prediction and climate modeling.

The Bush administration, while refusing to take action to address anthropogenic global warming and climate change, has repeatedly claimed that "more research is needed" to understand it, meanwhile they are gutting the very research programs that scientists say are essential to improving our understanding of climate.

Probably no other country or combination of countries in the world is presently capable of conducting this type of science. If NASA doesn't do it, no one will do it. The Bush administration not only does not want NASA's or NOAA's scientists to speak out about climate change, they don't want the scientists to know what human activities are doing to the Earth's climate.

Posted by: SecularAnimist on June 9, 2006 at 6:36 PM | PERMALINK

So does general intent, the difference is in general intent the willed end is the actus reus

Well, it's not necessarily a willed end, just a willed action.

Posted by: dj moonbat on June 9, 2006 at 6:36 PM | PERMALINK

Continuing with stating the obvious:

If you are in a crowd of people, and you set a blanket the size of the flag on fire, the police can arrest you for endangerment or distiburbing the peace or setting a fire illegally for that matter.

As if flagburning is even a problem out there.

Posted by: hopeless pedant on June 9, 2006 at 6:42 PM | PERMALINK

The most disturbing thing about criminalizing flag burning is the creation of a class of what will essentially be political prisoners. I've never seen a flag burnt, but when the first person is arrested he'll become a cause celebre. Flag burners and their supporters and attorneys and all manner of punditry will descend on the airwaves. If America truly wants to avoid seeing the flag desecrated, it shouldn't turn it into cable fodder by criminalizing it. And does the average American really want to spend $150,000/year to jail attention seekers?

Posted by: rb on June 9, 2006 at 6:46 PM | PERMALINK
Well, it's not necessarily a willed end, just a willed action.

Well, I think we're getting into pretty fine semantic hairsplitting at this point, but I think the use of "end" to refer to any object of will, including but not limited to actions, is a fairly common and proper usage, and it was what I intended.

Posted by: cmdicely on June 9, 2006 at 6:47 PM | PERMALINK
The most disturbing thing about criminalizing flag burning is the creation of a class of what will essentially be political prisoners. I've never seen a flag burnt, but when the first person is arrested he'll become a cause celebre. Flag burners and their supporters and attorneys and all manner of punditry will descend on the airwaves. If America truly wants to avoid seeing the flag desecrated, it shouldn't turn it into cable fodder by criminalizing it. And does the average American really want to spend $150,000/year to jail attention seekers?

Perhaps -- it would certainly explain why the US, already imprisoning more of its population than any other nation, is so obsessed with expanding both the range of criminal offenses and the duration of incarceration for existing offenses.

Posted by: cmdicely on June 9, 2006 at 6:49 PM | PERMALINK

I'd just like to speak up here and put in a good word for "Cheney" and "Don P." They are far more than shrieking voices of lunacy inside my head. They have also become close and valued friends.

yrs.,
Charlie
"not insane"

Posted by: Charlie on June 9, 2006 at 6:49 PM | PERMALINK

Wow! "Charlie" spam even on threads I am not on - that's impressive.

Posted by: Don P. on June 9, 2006 at 6:53 PM | PERMALINK

Don P.:

Wow! "Charlie" spam even on threads I am not on - that's impressive.

Don P. nailed it!

Nailed it!

Nailed it!

Nailed it!

I AM NOT INSANE!!!!!!!!

And of course, neither are the shrieking voices inside my head.

Posted by: Charlie on June 9, 2006 at 7:04 PM | PERMALINK

cmdicely,

This is misleading, if not actually completely wrong.

No, it's completely right. You don't know what you're talking about, as usual.

When the end willed does not correspond to the "actus reus" -- as in a statute that says "Whoever [does described act] with the intent of [producing descibed result]" -- it is still is called "intent".

If "intent of [producing described effect]" is supposed to refer to the reason for acting, that aspect of the crime is called "motive", as I said, not "intent."

"Motive" is, in my experience, used to describe something that is the reason for acting where this is not an element of the crime,

I don't know what "reason for acting where this is not an element of the crime" is supposed to mean. Is "element of the crime" supposed to mean "part of the statutory definition of the crime," or what?

Almost every subsection of the Espionage Act does that, as you have defined motive. For just one example, 18 USC 794(a) makes criminal doing any of a wide range of prohibited acts "for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation", which, as you have defined "motive" creates one motive requirement (the "purpose of obtaining information respecting the national defense) without which there is no crime at all, and an additional element that alternately requires a particular motive ("intent...that the information is to be used to the injury of the United States") or a particular factual circumstance ("reason to believe that the information is to be used to the injury of the United States"). So, again, the "motive" makes the difference between crime and no crime.

You're not listening. I asked you where the law defines a separate crime or a separate range of criminal penalties based on the motives of the criminal, which is what hate crime laws do. None of the quotes you provide above contain such a definition. The motive "intent...to be used to the injury of the United States" in part (a) is absent from part (b), and in both cases the range of penalties is the same ("shall be punished by death or by imprisonment for any term of years or for life"). Hate crimes statutes define different crimes, and different penalties, for identical acts based on a particular motive or motives. Nowhere does the espionage statute you cite do that. Try again.

As I said, there may be other kinds of law that do this, in addition to hate crime laws, but you haven't yet shown that there are any at all, let alone that there are "lots" of such laws.

Posted by: GOP on June 9, 2006 at 7:18 PM | PERMALINK

as an eagle scout, i've burned my share of flags. always with respect and to honor those who died in service to our country. and of course, we had many, many flag ceremonies where we displayed the flag in accordance with the proper tradition.

since 911 i've often been dismayed at the lack of proper flag etiquette among weekend patriots. i've seen so many flags displayed in the rain, or backwards, or left hanging in tatters on a fire escape forgotten. it is to me, emblematic of our president. a lot of lip service, with no real understanding and no real caring of what such a thing might mean. i should also mention that many of these flags were found in so-called "Bush Country".

if they want to pass a law barring the improper burning of flags, they should go all the way, shouldnt they?

Posted by: jw on June 9, 2006 at 7:23 PM | PERMALINK
I don't know what "reason for acting where this is not an element of the crime" is supposed to mean. Is "element of the crime" supposed to mean "part of the statutory definition of the crime," or what?

Yes, that's what, in legal discussion, an element of a crime is.

The motive "intent...to be used to the injury of the United States" in part (a) is absent from part (b), and in both cases the range of penalties is the same

They differ in other ways, as well; there are conditions in which merely lacking either of the two elements meeting your definition of "motive" in 794(a) transforms something from a crime, to no crime at all -- the difference between life imprisonment and no punishment at all.

Hate crimes statutes define different crimes, and different penalties, for identical acts based on a particular motive or motives.

I would submit that defining a difference between a life imprisonment crime and no crime at all based on motive is a bigger distinction.

Posted by: cmdicely on June 9, 2006 at 7:28 PM | PERMALINK

cmdicely,

"Because his mother-in-law is an Inuit" is a motive, not a characteristic. (Now, its a motive that happens to center around a characteristic, but its a motive.)

No, it's not a motive. Motives are a matter of belief, not empirical fact. The motive of hatred that defines a hate crime does not depend on the characteristics of the victim, but only on the beliefs of the perpetrator.

Clearly, you are the one with the problem distinguishing motive of the attacker from personal characteristic of the victim.

No, you are clearly hopelessly confused. A motive is a belief, not a fact about someone's identify or characteristics. If he murdered his mother-in-law because he hates inuits and he believes she is an inuit, that is a hate crime regardless of whether she actually is an inuit or not.

Posted by: GOP on June 9, 2006 at 7:49 PM | PERMALINK

cmdicely,

Yes, that's what, in legal discussion, an element of a crime is.

More nonsense. The vast majority of statutory definitions of crimes contain no stipulation of motive, but motive is almost always an "element" of a crime, and is often an important element in determining the penalty imposed on the criminal.

They differ in other ways, as well; there are conditions in which merely lacking either of the two elements meeting your definition of "motive" in 794(a) transforms something from a crime, to no crime at all -- the difference between life imprisonment and no punishment at all.

No there isn't. There is no separate crime defined in parts (a) and (b) of the statute, and no separate range of penalties. Part (b) makes no mention of motive at all.

Posted by: GOP on June 9, 2006 at 8:04 PM | PERMALINK
No, it's not a motive.

Yes, it is.

Motives are a matter of belief, not empirical fact.

Motives are a matter of motivation.

The motive of hatred that defines a hate crime

Very few actual hate crimes statutes define the offense by "hatred".

The actual, real-world "hate crimes" law I cited above, the principal US federal "hate crimes" law, is phrased parallel to the form rejected.

Posted by: cmdicely on June 9, 2006 at 8:13 PM | PERMALINK
More nonsense. The vast majority of statutory definitions of crimes contain no stipulation of motive, but motive is almost always an "element" of a crime, and is often an important element in determining the penalty imposed on the criminal.

No, in those cases where it is not part of the definition it is, by definition, not an element of the crime. It may be a factor sought to be demonstrated for persuasive purposes, and it may be a factor weighed in determining punishment, but its not an element of the offense.

Posted by: cmdicely on June 9, 2006 at 8:14 PM | PERMALINK

cmdicely,

Yes, it is.

No, it's not a motive. A motive to murder someone from hatred of her race or ethnicity may be present regardless of whether she actually is a member of that race or ethnic group. That is why the federal government defines a hate crime as a crime in which "the defendant's conduct was motivated by hatred, bias, or prejudice, based on the actual or perceived race, color, religion, national origin, ethnicity, gender, sexual orientation or gender identity of another individual or group of individuals." It would not have to be true that Nathan's mother-in-law "is an inuit" in order for Nathan to be guilty of a hate crime for murdering her motivated by hatred of inuits.

Motives are a matter of motivation.

Yes. Also, the sky is blue. But I expect you'll contest that too.

Posted by: GOP on June 9, 2006 at 8:40 PM | PERMALINK

cmdicely,

No, in those cases where it is not part of the definition ...

As I said, for the vast majority of laws, the statutory definition contains no stipulation of motive. You have yet to identify even one such definition other than hate crime laws.

it is, by definition, not an element of the crime.

No, it is not. The word "element" does not mean "part of the statutory definition of."

It may be a factor sought to be demonstrated for persuasive purposes, and it may be a factor weighed in determining punishment, but its not an element of the offense.

Tee hee hee. It's a "factor" but not an "element." What the hell is that supposed to mean? How can motive be a "factor" of a crime without being an "element" of that crime? How can motive be relevant to the seriousness of a crime, and thus relevant to the appropriate penalty to impose on the criminal, if it's not an "element" of the crime?

Posted by: GOP on June 9, 2006 at 8:49 PM | PERMALINK

Seems simple enough to me. If you are burning a flag to dispose of it properly that's ok. If you are disposing of a flag to make a statement that is not ok. So, we don't really need flag burning amendment at all. Just repeal the first amendment and all is taken care of. Can start putting religion back in government then too.

Posted by: majun on June 9, 2006 at 9:12 PM | PERMALINK

The Daughters of the American Revolution, among others, hold flag burning ceremonies in order to properly dispose of old or damaged flags. Our community places flags on the graves of veterans on Memorial Day and removes the flags after Veteran's Day. The proper manner of disposal for those flags is burning, which is carried out under the auspices of veterans's groups, the DAR, and others.

Posted by: applecrisp on June 9, 2006 at 9:34 PM | PERMALINK

On the House floor Thursday, Democratic Congressman Rahm Emmanuel threw down the gauntlet and challenged his GOP colleagues to repudiate the bilious words of Ann Coulter. But as should be clear by now, they simply can't. Whether the issue concerns gay Americans, 9/11, abortion, judicial appointments or political corruption, a seamless continuum of hate runs from today's governing conservatism through to its most extreme proponents. And that means the Congressional GOP differs only in degree - not in kind - from the cartoonish and sometimes criminal likes of Ann Coulter, Fred Phelps or Eric Rudolph.

For the full story, see:
"Ann Coulter and Conservatism's Continuum of Hate"

Posted by: AvengingAngel on June 9, 2006 at 10:00 PM | PERMALINK

I've also wondered what defines the flag. If I set fire to a flag in the town square and that flag only had 7 stars and 10 stripes could I be arrested? Would the feds say I KNEW the result of my act was to incite and the fact the flag was but a vague fascimile of Old Glory was immaterial? Could I burn a flag from 1830? No? So every flag from every era in every configuration is included in the amendment? And does it have to be an actual flag? Can I burn a poster of a flag? What if I'm projecting a movie of a waving flag and set fire to the screen? Can I sell cigarettes with the paper wrapping the tobacco having a representation of the flag? No? So now my flag cigarettes are illegal? Or just illegal to smoke?

Posted by: steve duncan on June 9, 2006 at 10:43 PM | PERMALINK

The precise meaning of the flag desecration amendment would be determined by the courts, just as it is for every other amendment.

Posted by: GOP on June 9, 2006 at 10:55 PM | PERMALINK

So who thinks an amendment prohibiting flag burning with the intention of desecrating it will result in fewer instances of flag burning with the intention of desecrating it?

No, I don't either.

Who thinks it will result in shenanigans like the ones described above by Steve Duncan?

(Can I legally create the effect of an endlessly burning virtual flag as a screen saver to protest the Iraq war?)

Yes, I do too.

Posted by: cowalker on June 10, 2006 at 2:28 AM | PERMALINK

"Can we get an amendment to ban politicans from wrapping themselves in the flag....?"

or an allows one to burn a flag if there's a politician wrapped in it?

Posted by: BroD on June 10, 2006 at 8:46 AM | PERMALINK

"Disposing of a flag at the end of it's service properly with respect and honor is much different than burning it while yelling anti-American slogans."
Posted by: Fat White Guy on June 10, 2006 at 11:22 AM
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Fat White Guy, what if I was burning a flag while yelling "I think the United States is the greatest nation on Earth!!!"?? Would burning a flag while yelling pro-American slogans exempt me?

Posted by: steve duncan on June 10, 2006 at 12:11 PM | PERMALINK
The word "element" does not mean "part of the statutory definition of."

That's certainly in standard meaning in legal discussions of crimes. Certainly it has lots of other meanings appropriate to other contexts.

It's a "factor" but not an "element." What the hell is that supposed to mean?

Exactly what it says. "Factor" and "element" are two different words with distinct meanings in this context.

How can motive be a "factor" of a crime without being an "element" of that crime?

Well, first, its not a "factor of a crime", its a factor, as I stated before, that may be weighed in determining sentencing for a crime, etc.

How can motive be relevant to the seriousness of a crime, and thus relevant to the appropriate penalty to impose on the criminal, if it's not an "element" of the crime?

An "element" of a crime is a component of the definition of the crime that must be proven for there to be a conviction for the crime. Sentencing considerations may weigh other factors, including one's that are specifically listed in the statute as mitigating or aggravating factors, or ones that are allowed to be considered for crimes generally that are not specific to the crime in question. Its quite common for factors which are not elements of the charged offense to be considered in sentencing.

Posted by: cmdicely on June 10, 2006 at 5:42 PM | PERMALINK

cmdicely,

Your argument is completely nonsensical, as usual. "Factor" is a synonym of "element." Both words refer to components or constituent parts of some composite entity. Motive is a factor or element of a crime because it determines in part the seriousness of the crime, and thus the magnitude of the penalty imposed on the criminal. A woman who steals a loaf of bread from a store to feed her hungry child is likely to receive a lesser penalty for her crime than a woman who steals a loaf of bread because of her racial hatred of the storeowner. In each case, the motive is part of what determines the magnitude of the crime, and thus the magnitude of the punishment.

Posted by: GOP on June 10, 2006 at 7:36 PM | PERMALINK

Clearly, we need A Constitutional Amendment that makes bonghits unconstitutional. Get on it, congress!


Posted by: cdc

There is no hope for this country.

Posted by: Mooser on June 10, 2006 at 11:46 PM | PERMALINK

Is a flag at the end of its useful life if it loses its meaning, even if its otherwise intact? The passage of a useless amendment to protect it would strip it of much of its symbolic value, while at the same time increasing the responsibility of owning one, since it would be difficult to know what one can and can't do or allow to happen to it. Should this amendment even come close to passing, I think we should have a large ceremony to dispose of devalued flags -- respectfully of course -- in front of the Capitol or somewhere.

Posted by: jenonymous on June 11, 2006 at 11:24 AM | PERMALINK

天津五星级宾馆 杭州五星

级宾馆 天津四星级宾馆

href="http://www.yujitea.com.cn/hotel/hzfour">杭州四星级宾馆

天津三星级

宾馆 杭州三星级宾馆

href="http://www.yujitea.com.cn/hotel/tjtwo">天津宾馆

杭州便宜宾馆

href="http://www.yujitea.com.cn/hotel/qindao">青岛宾馆

杭州宾馆

href="http://www.yujitea.com.cn/hotel/yantai">烟台宾馆

南京宾馆

href="http://www.yujitea.com.cn/hotel/taian">泰安宾馆

常州宾馆

href="http://www.yujitea.com.cn/hotel/weifang">潍坊宾馆

南通宾馆

href="http://www.yujitea.com.cn/hotel/weihai">威海宾馆

苏州宾馆

href="http://www.yujitea.com.cn/hotel/zibo">淄博宾馆

无锡宾馆

href="http://www.yujitea.com.cn/hotel/jinan">济南宾馆

扬州宾馆

href="http://www.yujitea.com.cn/hotel/dalian">大连宾馆

宜兴宾馆

href="http://www.yujitea.com.cn/hotel/shenyang">沈阳宾馆

徐州宾馆

href="http://www.yujitea.com.cn/hotel/changchun">长春宾馆

福州宾馆

大庆宾馆 武夷山宾馆

吉林宾馆 厦门宾馆

哈尔滨宾馆 潮州

宾馆 丹东宾馆

莞宾馆 齐齐哈尔宾馆

href="http://www.yujitea.com.cn/hotel/fuoshan">佛山宾馆

香港五星级宾馆

惠州宾馆 香港四星

级宾馆 江门宾馆

香港三星级宾馆 茂名宾馆

href="http://www.yujitea.com.cn/hotel/xianggang">香港宾馆

南海宾馆

石家庄宾馆 汕头

宾馆 北戴河宾馆

href="http://www.yujitea.com.cn/hotel/zhanjiang">湛江宾馆

唐山宾馆

肇庆宾馆 秦皇岛

宾馆 中山宾馆

保定宾馆 珠海宾馆

承德宾馆 三亚宾馆

长沙宾馆 北海宾馆

href="http://www.yujitea.com.cn/hotel/zhangjiajie">张家界宾馆

Posted by: sorryfive on June 12, 2006 at 8:00 AM | PERMALINK




 

 

Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM



buy from Amazon and
support the Monthly